December 22, 2008
Seventh Circuit creates SORNA split just in times for holiday cert shopping
Anyone looking for good cert vehicles to give to their favorite SCOTUS litigator this holiday season ought to be sure to check out a new opinion from the Seventh Circuit in US v. Dixon, No. 08-1438 (7th Cir. Dec. 22, 2008) (available here). Dixon covers a lot of ground concerning the reach and constitutionality of the Sex Offender Registration and Notification Act, and it flags this new statutory circuit split over the Act's reach:
After the appeal in our case was argued, the Tenth Circuit held in United States v. Husted, 2008 WL 4792339 (10th Cir. Nov. 5, 2008), that the Act punishes only convicted sex offenders who travel in interstate commerce after the Act was passed....
On the Tenth Circuit’s logic, a sex offender who has resided in Indian country since long before the Act was passed is subject to the Act but not someone who crossed state lines before the Act was passed. That result makes no sense....
We therefore disagree with the Tenth Circuit’s interpretation. Because this ruling creates an intercircuit conflict, we have circulated our opinion to the full court before issuing it, as required by Circuit Rule 40(e). There were no votes to hear the case en banc.
Why we need a re-entry czar and a task force on the prison economy
Now that the Obama transition team has filled the cabinet and is busy creating new task forces to deal with modern new concerns, it is time for those concerned about modern criminal justice problems to step up pitches for the incoming Obama administration as to how to improve modern criminal justice systems. I have already done a some of this pitching thanks to the kind editors of the Harvard Law & Policy Review who helped me publish this piece, titled, "Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities." But I have a lot more ideas, particularly concerning czars and task forces that the new administration should create.
Specifically, in light of the urgent importance of re-entry programming with 700,000 persons getting released from prison every year, we need a national re-entry czar who can help state and localities with re-entry programming. The passage of the federal Second Chance Act last year (which Senators Biden, McCain and Obama all supported) highlights the congressional interest in re-entry efforts. But the Second Chance Act has not yet been adequately funded and national coordination of effective re-entry programs could and should greatly improve the reintegration of ex-offenders into communities.
In addition, in light of the extraordinary budget pressures states are feeling and the high costs of mass incarceration, we need a national task force on the prison economy. Senator Jim Webb has already held two important hearings through Congress's Joint Economic Conference to highlight the inefficiencies and ineffectiveness of mass incarceration, especially as the war on drugs continues to fill our prisons without seeming to do much to diminsh illegal drug use. Senator Webb could and should head a prison economy task force, which could and should include attorneys general and governors in states being forced to consider prison releases to deal with budget deficits.
I am sure readers have other ideas for the incoming Obama administration as to how to improve modern criminal justice systems, and I hope everyone will use the comments to express these ideas (or to critique my ideas).
Some recent related posts:
- ABA criminal justice transition recommendations
- Will the Obama Administration embrace and promote the faith-based prison movement?
- How a new administration is likely to impact federal sentencing practice
- Why federal sentencing reformers must focus on the USSC and lower courts
- Are we on the verge of a new changed era concerning federal sentencing law and policy?
- "Smart on Crime: Recommendations for the Next Administration and Congress"
- What might a new administration mean for the federal death penalty?
- FSR publishes issue on "American Criminal Justice Policy in a 'Change' Election"
December 21, 2008
How many states are being forced by economic realities to consider releasing prisoners?
This local story from Virginia, headlined "Kaine’s plan calls for release of inmates," has me wondering how many states are being forced to consider inmate releases because of economic difficulties. Here is the start of the piece from Virginia, which spotlights both the practical and political issues that always surround these stories:
Gov. Timothy M. Kaine’s proposal to release roughly 1,000 inmates 90 days early runs counter to the longstanding direction of policy in the state and is raising some mixed reactions, even among Republicans.
Kaine’s budget proposal, if approved by the General Assembly, would save an estimated $5 million by 2010 and would leave it up to the director of the Virginia Department of Corrections to select the nonviolent inmates for early release.
“The rate of growth in the state’s budget for incarceration [now over $1 billion annually] has dramatically outpaced other spending items over the past decade,” Kaine said Wednesday in detailing his plans to deal with a nearly $3 billion budget shortfall. “At a time of economic crisis, lawmakers should rethink costly policies, like prison expansion, that divert resources from education, health care and child services,” he said.
But former Virginia Attorney General Jerry W. Kilgore, Kaine’s Republican opponent for governor in 2005, thinks Kaine is taking a big public-safety and political risk. “Any crime committed by [the inmates released early] can be tied around his neck,” Kilgore said. “One thing you don’t cut even in hard times is public-safety dollars. I think that sends the wrong message, particularly when you go into bad economic times [and] you see more crime, not less.”
Likewise, J. Tucker Martin, spokesman for Virginia Attorney General Bob McDonnell, said McDonnell “does not believe this is an appropriate way to balance Virginia’s budget.” “This is contrary to the current policy of the commonwealth related to abolition of parole,” Martin said. Inmates should serve their full sentences and when released be provided with the resources needed to successfully re-enter society, he said.
But Richard Cullen, a former Virginia attorney general, U.S. attorney and longtime Republican activist, said, “Governor Kaine is very thoughtful, and I’m sure he’s not going to do anything that’s going to adversely impact public safety.”
I sense that these sorts of issues and debates are arising in nearly every state with sizable prison populations. In addition to providing more evidence of the criminal justice ripples of our current economic times, these stories also provide a sober reminder of the long-term costs of using incarceration as our first response to all crime and public safety concerns. The silver lining in all these stories is that states are now likely to seriously consider most cost-effective and "productive" responses to crime beyond the usual "let's get tougher" political rhetoric.
For another view on these economic dynamics, consider also this worrisome story out of Utah headlined "Economy forces state to scrimp on treatment for young sex offenders." Here is how this piece begins:
Despite Utah's young demographics and a booming number of juvenile sex offenders, upcoming budget cuts will hit kids in trouble hard. An expected $3 million shortfall through 2010 means fewer juvenile sex offenders will be evaluated and treated as efforts to build a new center have been scrapped. More kids will be crowded together if a long-term lockup center is closed. And funds will be chopped from a slew of community programs including one that gives police a place to take arrested juveniles if their parents can't be found right away.
Some related posts:
Could there be a link between certain types of military service and criminal behavior?
The front page of this morning's Los Angeles Times has this provocative article headlined, "'Lethal Warriors' in Iraq, linked to string of crimes back home." Here are exceprts from the article:
On Nov. 30, 2007, Kenneth Eastridge, a wiry, heavily tattooed survivor of the fighting, found himself at a rough Colorado Springs bar called the Rum Bay, not far from the unit's Ft. Carson base. Eastridge, a high school dropout from the projects of Louisville, Ky., had joined the Army to escape what seemed the dead-end prospects of civilian life, only to run repeatedly afoul of Army rules and face a court-martial.
So on that cold night just two days after his discharge, Eastridge was at loose ends again, in the company of two other war-coarsened vets from his unit, Louis Bressler and Bruce Bastien. Police say the trio plotted a robbery in the company of an Army private, leaving Bressler worried that the private would divulge their plot. Later that night, police say, Bressler shot the soldier to death with a .38-caliber revolver. Now Eastridge, 25, sits behind bars in a Colorado prison, having agreed to a 10-year sentence in exchange for his testimony.
The Army was quick to downplay any link between what he and the other soldiers saw in Iraq and the allegations against them. "Anybody that does crimes of that nature, it goes deeper and farther back than anything in the U.S. Army," said Lt. Col. Brian Pearl, the 2-12's commanding officer. "Nothing here has trained them to do what they are charged with."
Yet there is a larger story of those who fought with the 700-soldier unit: a string of alleged robberies, domestic violence and senseless murder. Six of the veterans are behind bars, implicated in four separate shooting incidents and five slayings since August 2007. The killings stretch from Colorado to an Orange County beach town, where a veteran of the company is accused of beating his girlfriend to death.
Reviewing the lengthy appeals process for capital cases
New Hampshire sentenced a killer to death this week for the first time in a very long time. As this effective local article highlights, the new death sentence means that folks in the Granite state will now get a first-hand view of the lenthy appeals process in capital cases. The article is headlined, "Appeals likely for 15 years: Legal safeguards myriad; capital cases rare in N.H," and here is how it starts:
Appeals in Michael Addison's capital murder case are likely to span at least 15 years if he pursues them all, death penalty experts say. That's because there are myriad constitutional protections designed to prevent unjust executions - and because the New Hampshire judiciary is inexperienced with death penalty law.
Addison, 28, who was sentenced to death Thursday for shooting and killing Manchester police Officer Michael Briggs, is the first New Hampshire man to receive a death sentence since 1959, before the U.S. Supreme Court rewrote the rules on death penalty law and before New Hampshire crafted its own law that made the murder of a police officer punishable by death.
The Addison case represents unexplored territory. "There is as much substantive rust on the pipes as possible," said Frank Zimring, a University of California-Berkeley law professor and author of The Contradictions of American Capital Punishment. Zimring said that the case will present many new issues for the New Hampshire Supreme Court, will be pursued by lawyers without experience in death penalty litigation and will take place in a region that has demonstrated ambivalence about capital punishment.
"My impression is that this case could well spend the next 15 or 20 years in the court system," said Stephen Bright, senior counsel at the Southern Center for Human Rights and a lecturer on death penalty law at Yale Law School. "It could very well be reversed."
Since the U.S. Supreme Court allowed states to reintroduce the death penalty in 1976, only four executions have taken place in the Northeast and only one has occurred in New England. In 2005, Connecticut executed Michael Ross, an admitted serial killer who had raped and murdered eight women and ultimately gave up on his appeals after 18 years on death row. New Hampshire and Connecticut are the only New England states with the death penalty on the books.
"There are an awful lot of layers, and all of this is going to be brand new to New Hampshire, and all of it is going to be in an environment that is enormously ambivalent about capital punishment," Zimring said.